Gritta's Case
127 N.E. 889
Mass.
1920
Check Treatment
Crosby, J.

The record shows that Maria Pappalardo was married in Italy and lived there with her husband; that, before she left that country in 1911, her husband had been convicted of serious offences and committed to prison for life; that his wife then came to America, met the deceased employee, and later, about September 26, 1913, "went through a marriage ceremony, legal in form,” with him; and that thereafter the parties lived together as husband and wife.

The single member of the Industrial Accident Board found that in entering into the alleged marriage contract she did so with the belief there was no legal obstacle to it and that "at no time was any question raised in her mind as to the legality of her marriage, until the present proceedings were begun;” that two children were born, and the parents and children lived together until the employee received an injury which resulted in his death; and further, that the children were totally dependent upon the deceased.

*206He also found that the mother is not entitled to compensation under the act; that finding, upon review, has been affirmed by the Industrial Accident Board without appeal. The board also affirmed the finding that the children did not come within the definition of "child or children” as those words are used in St. 1911, c. 751, Part II, § 7 (c), as amended by St. 1914, c. 708, § 3 (c), and St. 1919, c. 204. They must be held to refer only to a legitimate child or children. R. L. c. 133, § 3. Baylis v. Baylis, 207 N. Y. 446.

After defining the persons who are conclusively presumed to be wholly dependent for support upon a deceased employee, in Part II, § 7, it is further provided in the same section that “In all other cases questions of dependency, in whole or in part, shall be determined in accordance with the fact, as the fact may be at the time of the injury.” Part V, § 2 defines dependents as follows: “'Dependents’ shall mean members of the employee’s family or next of kin who were wholly or partly dependent upon the earnings of the employee for support at the time of the injury.” In Cowden’s Case, 225 Mass. 66, it was said at page 67: “‘Family’ in its usual sense means 'the collective body of persons who live in one house and under one head or management.’ Dodge v. Boston & Providence Railroad, 154 Mass. 299, 301. That is the significance ordinarily attributed to the word under the act. Kelley’s Case, 222 Mass. 538. See Newman’s Case, 222 Mass. 563, 568.” See cases cited 19 Cyc. 451, 452, 453. The board has found that the children were members of the employee’s family; that finding is amply supported by the evidence. It would seem plain from the facts recited in the record, that these children from the date of their respective births lived with their mother and the employee until his death; that he supported them and they were a part of his family to the same extent as if their parents had been lawfully married. The deceased employee recognized the moral obligation which rested upon him to support the children and cared for them as his own lawful offspring, and manifestly they were in fact members of his family at the time of his death.

The question remains whether the illegitimacy of these children affects their status as members of the employee’s family under the act. It is the contention, of the insurer that, as the act *207does not specifically include illegitimate children as entitled to its benefits, they should not be held to take by implication; and that in the interests of marital morality and sound public policy they should not be held to be members of the employee’s family.

Considerations óf public policy which would prevent a wrongdoer from participating in the benefits of the act ought not to apply to innocent children born out of lawful matrimony; they are not responsible for their existence or status, they have committed no wrong, and they must be supported as the death of the employee has taken from them the care and maintenance which they had previously received from him as the head of the family. We are of opinion that upon the facts disclosed by the record they are entitled to compensation under the act.

Although the question has not previously been considered by this court, the conclusion reached is in harmony with that of courts in other jurisdictions where it has arisen under workmen’s compensation acts containing provisions similar to our own in this respect. Roberts v. Whaley, 192 Mich. 133. Scott’s Case, 117 Maine, 436. Piccinim v. Connecticut Light & Power Co. 93 Conn. 423.

The cases of Bell v. Terry & Tench Co. 177 App. Div. (N. Y.) 123; S. C. 163 N. Y. Supp. 733, Scott v. Independent Ice Co. 135 Md. 343, are not at variance with the conclusion here reached. The language of the workmen’s compensation acts there construed is materially different from ours, and for that reason need not be considered.

It follows that the rulings two and three requested by the insurer, could not properly have been made.

Decree affirmed.